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ROAD TRAFFIC ACT 1974 - SECT 70

70 .         Evidentiary provisions

        (1)         Without affecting the admissibility of any other evidence that may then be given, in any proceeding for an offence against section 62B, 64, 64AA, 64A, 64AAA, 64B or 64C, or for an offence against this or any other Act in which the question whether a person was or was not, or the extent to which the person was, under the influence of alcohol at any material time is relevant, evidence may be given of —

            (a)         the provision of a sample of breath by the person for analysis, if provided within 4 hours after the driving, attempted driving, use or management of a motor vehicle that gave rise to the alleged offence; and

            (b)         the analysis of the sample of breath by breath analysing equipment operated by an authorised person; and

        [(c)         deleted]

            (ca)         the manner in which breath analysing equipment indicated the result of an analysis; and

            (d)         the taking of a sample of blood from the person by a prescribed sample taker, if taken within 4 hours, or 12 hours if the sample was taken under section 66(8B), after the driving, attempted driving, use or management of a motor vehicle that gave rise to the alleged offence; and

            (e)         the analysis of the sample of blood for alcohol by an analyst; and

            (f)         the analysis result obtained pursuant to section 68 or 69.

        (2)         In any proceeding such as is mentioned in subsection (1), a certificate in the prescribed form —

            (a)         purporting to be signed by the Commissioner of Police, certifying that a person therein named is, or was at the material time, an authorised person; or

            (b)         purporting to be signed by the chief executive officer of the Chemistry Centre (WA), certifying that a person therein named is, or was at the material time, an analyst; or

        [(ba)         deleted]

            (bb)         purporting to be signed by an authorised person —

                  (i)         certifying that a person therein named provided a sample of breath for analysis on a date and at a time stated therein; and

                  (ii)         certifying that the sample of breath so provided was analysed by apparatus operated by the authorised person and that apparatus was breath analysing equipment within the meaning of section 65; and

                  (iii)         certifying that the breath analysing equipment was operated by the authorised person in the prescribed manner and that the regulations relating to analysis by breath analysing equipment of the relevant type were complied with; and

                  (iv)         certifying that the breath analysing equipment indicated a result in the prescribed manner at the conclusion of the analysis; and

                  (v)         setting out the analysis result obtained from the analysis; and

                  (vi)         certifying that in accordance with section 68(9) the authorised person completed, signed, and handed to the person by whom the sample of breath was provided, a statement as required by that subsection, or that the authorised person complied with the requirements of that subsection by signing, dating, and handing to the person, a statement printed by the breath analysing equipment; and

                  (vii)         certifying that the authorised person was at the material time an authorised person;

                or

            (c)         purporting to be signed by a technologist of a body approved by the Minister, certifying that identified sampling equipment comprises the prescribed items, that those items have been prepared by the technologist and are sterile and fit for the purpose of taking a sample of blood for analysis if used not later than a specified date; or

            (d)         purporting to be signed by a prescribed sample taker, certifying that an identified sample of blood was taken from a named person, on a date and at a time therein specified, in accordance with the regulations using identified sampling equipment, which was received in a described condition from an identified person; or

            (e)         purporting to be signed by an analyst, certifying either or both of the following, namely, that an identified sample of blood taken from a named person was analysed for alcohol in accordance with the regulations, and the analysis result obtained from the analysis,

                is prima facie evidence of the matters therein certified or set out, without proof of the signature of the person purporting to have signed it or proof that the purported signatory was the Commissioner of Police, the chief executive officer of the Chemistry Centre (WA), an authorised person, a technologist, a prescribed sample taker or an analyst (as is relevant).

        [(2a)         deleted]

        (3)         In any proceeding for an offence against a provision mentioned in subsection (1), evidence by an authorised person of any of the following is prima facie evidence of that fact —

            (a)         the apparatus operated by the authorised person pursuant to section 68 was breath analysing equipment;

            (b)         breath analysing equipment was operated by the authorised person in the prescribed manner and the regulations relating to analysis by breath analysing equipment of the relevant type were complied with;

            (c)         breath analysing equipment indicated a result in the prescribed manner on the occasion of its operation.

        (3a)         Without affecting the admissibility of any other evidence that may then be given, in any proceeding for an offence against section 62C, 64AC, 64B or 64C, or for an offence against this or any other Act in which the question whether a person was or was not, or the extent to which the person was, under the influence of or impaired by drugs at any material time is relevant, evidence may be given of —

            (a)         the taking of a sample of blood from the person by a prescribed sample taker, if taken within 4 hours, or 12 hours if the sample was taken under section 66(8B), after the driving, attempted driving, use or management of a motor vehicle that gave rise to the alleged offence; and

        [(b)         deleted]

            (c)         the analysis of a sample of blood for drugs by a drugs analyst and the result obtained from the analysis; and

            (d)         the conduct, condition or appearance of the person at or after the time of the driving or attempted driving of a motor vehicle that gave rise to the alleged offence or during a driver assessment; and

            (e)         conduct, a condition or an appearance associated with a person who has consumed or used a particular drug or particular drugs; and

            (f)         the usual effect that conduct or a condition associated with a person who has consumed or used a particular drug or particular drugs has on a person’s capacity to have proper control of a motor vehicle; and

            (g)         the provision of a sample of oral fluid by the person under section 66D, if provided within 4 hours after the driving, attempted driving, use or management of a motor vehicle that gave rise to the alleged offence; and

            (h)         the analysis for drugs by a drugs analyst of a sample of oral fluid provided under section 66D, and the result obtained from the analysis.

        (3b)         In any proceedings such as is mentioned in subsection (3a), a certificate in the prescribed form —

            (a)         purporting to be signed by the chief executive officer of the Chemistry Centre (WA) certifying that a person named therein is, or was at the material time, a drugs analyst; or

            (b)         purporting to be signed by a technologist of a body approved by the Minister, certifying that identified sampling equipment comprises the prescribed items, that those items have been prepared by the technologist and are sterile and fit for the purpose of taking a sample of blood for analysis if used not later than a specified date; or

        [(c)         deleted]

            (d)         purporting to be signed by a prescribed sample taker, certifying that an identified sample of blood was taken from a named person, on a date and at a time therein specified, in accordance with the regulations using identified sampling equipment, which was received in a described condition from an identified person; or

        [(e)         deleted]

            (f)         purporting to be signed by a drugs analyst certifying either or both of the following —

                  (i)         that an identified sample of blood or oral fluid taken from or provided by a named person was analysed for drugs;

                  (ii)         the analysis result obtained from the analysis;

                or

            (g)         purporting to be signed by an approved expert describing conduct, a condition or an appearance associated with a person who has consumed or used a drug or drugs specified in the certificate; or

            (h)         purporting to be signed by an approved expert setting out the usual effect that conduct or a condition associated with a person who has consumed or used a particular drug or particular drugs has on a person’s capacity to have proper control of a motor vehicle; or

                  (i)         purporting to be signed by a police officer describing the conduct, condition or appearance of a person at or after the time the person drove or attempted to drive a motor vehicle; or

            (j)         purporting to be signed by a police officer certifying the following —

                  (i)         that the police officer conducted a driver assessment on a person named in the certificate on a date and at a time stated in the certificate;

                  (ii)         that the assessment was conducted in accordance with the regulations,

                and describing the conduct, condition or appearance of the person during the assessment; or

            (k)         purporting to be signed by an authorised drug tester certifying that, under section 66D, an identified sample of oral fluid was collected by the authorised drug tester in accordance with the regulations from a named person on a date and at a time specified in the certificate using identified sampling equipment which was received in a described condition from an identified person,

                is prima facie evidence of the matters therein certified or set out, without proof of the signature of the person purporting to have signed it or proof that the purported signatory was such chief executive officer, or was such a technologist, or was a prescribed sample taker, drug analyst, approved expert, police officer or authorised drug tester.

        (3c)         In any proceeding for an offence against section 67 in relation to a requirement to provide a sample of the person’s breath for analysis under section 66, 67AC, 67AD or 68A a certificate in the prescribed form purporting to be signed by the Commissioner of Police, certifying that a person therein named is, or was at the material time, an authorised person is prima facie evidence of the matters therein certified, without proof of the signature of the person purporting to have signed it or proof that the purported signatory was the Commissioner of Police.

        (3d)         In any proceeding for an offence against section 67AC, 67AD, 67A(1) or 68A of failing to comply with a requirement made pursuant to section 66D(1) a certificate in the prescribed form purporting to be signed by the Commissioner of Police certifying that a person therein named is, or was at the material time, an authorised drug tester is prima facie evidence of the matters therein certified, without proof of the signature of the person purporting to have signed it or proof that the purported signatory was the Commissioner of Police.

        (4)         Nothing in this section is to be construed as precluding or restricting the introduction of any competent evidence, whether in addition to, or independent of, any evidence for which provision is made by this section, bearing on the question of whether a person was or was not guilty of an offence against this or any other Act.

        (5)         Except at the instance, or with the consent, of the accused in any proceeding such as is mentioned in subsection (3a), a certificate mentioned in subsection (3b)(f), (g) or (h) must not be adduced, and if adduced must not be admitted, in that proceeding unless a copy of the certificate is proved to have been served on the accused at least 28 days before the day on which the certificate is adduced.

        (5a)         If subsection (5) has been complied with in relation to a certificate, the accused must not challenge or call into question any matter certified or set out in the certificate unless —

            (a)         notice of the accused’s intention to do so is proved to have been served on the prosecutor at least 14 days before the day on which the certificate is adduced; or

            (b)         the court, in the interests of justice, gives the accused leave to do so.

        (5b)         A notice under subsection (5a)(a) must specify the matter that is to be challenged or called into question.

        (5c)         Except at the instance, or with the consent, of that person, evidence that a person underwent a preliminary oral fluid test and of any indication provided by such a test must not be adduced, and if adduced must not be admitted, in any proceedings other than proceedings for an offence against section 67AB, 67AC, 67AD, 67A, 68A or 71BA.

        (5d)         Except as provided by subsection (3a) or (3b) or at the instance, or with the consent, of that person, evidence that a person provided a sample of the person’s oral fluid for drug testing must not be adduced, and if adduced must not be admitted, in any proceedings other than proceedings for an offence against section 67AB, 67AC, 67AD, 67A, 68A or 71BA.

        (5e)         Except at the instance, or with the consent, of that person, evidence of the result of the drug testing of a sample of a person’s oral fluid by an approved device, must not be adduced, and if adduced must not be admitted, in any proceedings other than proceedings for an offence against section 67AB, 67AC, 67AD, 67A, 68A or 71BA.

        (6)         Except at the instance, or with the consent, of that person, evidence that a person provided a sample of the person’s breath for a preliminary test and of any indication provided by such a test must not be adduced, and if adduced must not be admitted, in any proceedings other than proceedings for unlawful arrest or for an offence against section 64AB, 67, 67AA, 67AC, 67AD, 67A or 68A.

        (7)         In this section —

        approved expert means a qualified clinical pharmacologist approved by the Minister for the purpose of this section by notice published in the Gazette ;

        technologist means —

            (a)         a person registered as an analyst under section 203 of the Health (Miscellaneous Provisions) Act 1911 ; or

            (b)         a person approved, or belonging to a class of persons approved, by the Minister to prepare sampling equipment.

        [Section 70 amended: No. 71 of 1979 s. 12; No. 82 of 1982 s. 18; No. 121 of 1987 s. 9; No. 11 of 1988 s. 13; No. 19 of 1990 s. 8; No. 13 of 1992 s. 12; No. 39 of 2000 s. 35 and 36; No. 6 of 2007 s. 15; No. 10 of 2007 s. 43; No. 39 of 2007 s. 37; No. 8 of 2012 s. 37 and 38; No. 19 of 2016 s. 101; No. 25 of 2016 s. 11, 39, 40 and 54; No. 27 of 2020 s. 29.]



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